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Mucky private chat could be illegal soon

Risky encounters of the IRC and Twitter kind

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Could 2010 be the year when the authorities finally clamp down on the internet – and in the process abolish some fundamental liberties we have been taking for granted for a very long time? The answer from two cases – one now over, though possibly subject to appeal, the other going forward to a full hearing later this year – could be a very worrying affirmative.

First up is the case that got the green light yesterday. As already reported by The Register, Kent Police are in the process of using the Obscene Publications Act as a means to prosecute an individual, Gavin Smith, of Swanscombe for publishing obscenity in respect of a log of a private online chat he had with another individual.

Due to reporting restrictions, we are unable to give any further details of the alleged content of the conversation at this point in time.

What is beyond dispute is that this case marks an extension of the OPA into an area that its originators could never have envisaged – to wit, text chat or, as most internet users would regard it, person-to-person conversation.

The legal principle at stake here is whether internet chat constitutes "publication" in the ordinary sense of the word, or can be treated as private conversation. If the former is the conclusion, then anyone with even a passing interest in more extreme fantasies (not just underage, but also BDSM, rape and other matters currently covered by the extreme porn laws) may need to be very careful in respect of any online conversations they have in future. IRC will no longer be quite the refuge of the bizarre and the outlandish it once was.

Yesterday’s hearing, before magistrates in Gravesend (the date was moved from May 6) resulted in the date of a committal hearing being agreed for 9 July. At that time, a judge may decide that the case has no legal merit. Otherwise, a date will then be set for trial, and the seriousness of this matter will escalate another notch.

Meanwhile, tweeters, bloggers and anyone else in the habit of spraying their views thoughtlessly around the internet should be very worried indeed by the actual ruling given in respect of Paul Chambers, recently found guilty of the offence of sending a menacing message via a public telecommunications network.

As reported previously, Chambers was found guilty of sending a menacing message in respect of a frustrated tweet, which read: "Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!"

The key issue here is that District Judge, Jonathan Bennett, in ruling that this tweet fell foul of section 127 of the Communications Act 2003, seems to have interpreted that law as meaning that whether or not a text or message is construed as threatening will depend not on the intent of the sender – but on how that message is viewed by its recipient.

The full text of the judgment – plus legal analysis – is given here. However, the very real concern is that in future this ruling, if allowed to stand, suggests that you may be committing a criminal offence if you use Twitter as a "public electronic communications network" to send messages that are "grossly offensive, indecent, obscene, menacing, annoying, inconveniencing or causing needless anxiety". ®

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